Klingler v. City Of Chicago et al

Filing 170

MEMORANDUM Opinion and Order:For the foregoing reasons, the City's motion to dismiss 141 , is granted as to Count III and denied as to its remaining parts. Defendant Griebel's motion to compel 130 is denied as moot. Plaintiff's moti on to quash 154 is denied, see this Court's 7/26/2017 order. Status hearing held on 8/8/2017. Plaintiff's response to defendant Will County's motion for summary judgment 166 is due by 9/22/2017. Defendant's reply is due 10/6/2017. A status hearing set for 10/20/2017 at 09:00 AM. The 9/5/2017 status date is vacated. Plaintiff is to respond to outstanding discovery requests by 8/14/2017. Signed by the Honorable Thomas M. Durkin on 8/8/2017:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WHITLEY KLINGLER,
Plaintiff,
v.
CITY OF CHICAGO; MAYASOL LLC, d/b/a
MCDONALD’S; CHICAGO POLICE OFFICER
MAAS (Star # 5237); CHICAGO POLICE
DETECTIVE JOHN E.CALLAGHAN
(Star # 20933); COMMANDER VOULGARIS
(Star #____); OFFICER BRANNIGAN (Star # 1593);
COUNTY OF WILL; SHERIFF OF WILL COUNTY
PAUL KAUPAS; and WILL COUNTY SHERIFF’S
DEPUTY MATTHEW GRIEBEL (ID # 01-913),
Defendants

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15-CV-1609
Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
The City of Chicago has filed a partial motion to dismiss Plaintiff’s Second
Amended Complaint. R. 141. The Court’s prior ruling on the City of Chicago’s
motion to dismiss the First Amended Complaint is found at Klinger 1 v. City of
Chicago, 2017 WL 736895 (N.D. Ill. Feb. 24, 2017). Familiarity with that ruling and
the underlying facts of the case is presumed.
DISCUSSION
A.

Monell Claim

Primarily at issue is whether Plaintiff has succeeded in her second attempt to
allege a Monell claim against the City. Pursuant to Monell, the City may be held
Plaintiff’s name is spelled incorrectly in the Court’s previous order. The correct
spelling is “Klingler.”

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liable under § 1983 only if a municipal policy caused the alleged constitutional
violation. “[A] plaintiff may demonstrate the existence of an official policy in one of
three ways: (1) proof of an express policy causing the loss; (2) a widespread practice
constituting custom or usage that caused the loss; or (3) causation of the loss by a
person with final policymaking authority.” Kujawski v. Bd. of Comm’rs of
Bartholomew Cnty. Ind., 183 F.3d 734, 737 (7th Cir. 1999).
1.

Official With Final Policymaking Authority

On the Court’s original ruling on the Monell claim, Plaintiff relied solely on
the second type of Monell claim—“a widespread practice constituting custom or
usage.” But in her Second Amended Complaint, Plaintiff has added allegations with
respect to the third type of Monell claim of a loss occasioned by a person with final
policymaking authority. Plaintiff now asserts that a newly named defendant, Watch
Commander Valgouris, is a person with final policymaking authority whose actions
caused her loss.
There are two problems with this new Monell theory. First, the only
allegations of any conduct by Valgouris are that he was on duty the night of the
incident and that he summoned Officer Brannigan to the scene. Paragraph 84 of the
Second Amended Complaint then goes on to allege that Officers Brannigan and
Maas acted pursuant to the directives of Commander Valgouris when they failed to
properly obtain the suspect officer’s name and when they let him leave the scene.
But the only facts alleged to support the conclusory factual allegation that
Commander Valgouris directed Brannigan and Maas to engage in the cover-up are

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that he was the Watch Commander and that he sent Brannigan to the scene. To
infer from these two facts that Valgouris directed the cover-up is implausible.
Second, even if the allegations regarding Valgouris plausibly suggest actual
direction of the alleged cover-up, the allegation that he was the Watch Commander
does not plausibly suggest that he was an official with final policymaking authority.
To fit within the third category of Monell claims, the employee must be responsible
for establishing final government policy in a particular area or on a particular issue.
See Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 675-76 (7th Cir. 2009)
(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)). The allegation
that a watch commander has final policymaking authority on the issue of how an
incident is investigated, such as who to interview, what information to obtain, and
how to report the information obtained from an investigation, simply is not
plausible. A “watch commander” is commonly understood to be someone who is in
charge of a particular area during a particular shift. The Court takes judicial notice
that the duties of a Watch Operations Lieutenant of the Chicago Police Department
is consistent with this common understanding. The Watch Operations Lieutenant is
responsible for “personally oversee[ing], manag[ing], and direct[ing] the operations
of a watch, including response and crime prevention strategies, consistent with
plans and strategies established by the executive officer and district commander.”
Special Order S03-030-03, Chicago Police Department (emphasis added). 2 In other
words, the Watch Operations Lieutenant’s job is to supervise and direct all police
2

Available at http://directives.chicagopolice.org/directives/.
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activity in a given time period when he is on “watch” to make sure officers under his
direction follow the rules; he is not making the rules.
Further, while a person can be an official policymaker in practice, even if not
formally in title, see, e.g., Mitran v. Cnty. of Dupage, 946 F.2d 897, 1991 WL 209656
at *4 (7th Cir. 1991) (unpublished) (lower level official may be deemed to have final
policymaking authority where decision-making is delegated to him without any and
review by a higher authority), there are no factual allegations from which the Court
can plausibly infer that policymaking authority was delegated to Commander
Valgouris without being subject to review and/or override by his superiors in the
police department. Thus, the Court concludes that the allegations regarding
Commander Valgouris do not save Plaintiff’s Monell claim.
2.

Widespread Practice Constituting A Custom
or Usage

In ruling on the City’s first motion to dismiss, the Court held that Plaintiff’s
Monell claim against the City was legally insufficient because it was conclusory and
failed to include any allegations about similar incidents or complaints. See R. 129 at
47-50. The new allegations in the Second Amended Complaint similarly contain
many conclusory assertions of a “widespread practice” or “policy or custom.”
Moreover, while there is some attempt to reference past complaints against the two
main officers involved, no details are given about those complaints to make the
allegation of similar incidents or complaints plausible. The Court thus does not rely
here on these allegations, which simply list the elements of a Monell claim in

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conclusory fashion and as a result are not sufficient by themselves to survive Rule
12(b)(6) dismissal.
Nevertheless, the Court must conclude that the amended Monell claim is
sufficient for purposes of Rule 12(b)(6) for a different reason. Beyond her generic
Monell allegations, Plaintiff pleads other facts that make it plausible this was not
an isolated incident. In its first ruling, the Court noted that in some cases the
specific facts of the case at hand may be enough to render the plaintiff’s Monell
claim plausible without the need to allege similar incidents or complaints. See
R. 129 at 48-49. Ultimately, however, the Court concluded that the involvement of
the two police officers, Mass and Callaghan, were not sufficient. But now Plaintiff
has added a third police officer who allegedly was involved in the cover-up, Officer
Brannigan. Brannigan is the officer who allegedly wrote the fictitious name
“O’Dublin” on the incident report. Further, Plaintiff has since learned that the IPRA
interviewed members of the Emerald Society on the very evening that the incident
took place and discovered from those individuals that the officer who assaulted
Plaintiff was a Will County Sheriff’s Deputy named Matthew Griebel. This raises
the question of why Callaghan refused Plaintiff’s request when she met with him a
day or so after the incident to investigate the officer responsible for the assault, or,
at the very least look into his identity and provide Plaintiff with that information. It
is plausible given the results of the IPRA investigation that had Callaghan looked
into the alleged assailant’s identity, he would have discovered it. Callaghan was the
detective assigned to investigate the incident, and therefore he was acting

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independently of the officers who were on the scene of the incident days earlier. And
why would he not have informed Plaintiff of Griebel’s identify if he could have
discovered it and there was no “code of silence” to protect fellow officers?
This Court recently found that a plaintiff had alleged an adequate Monell
claim despite basing his claim solely on the events at issue in the case. As this
Court explained:
The challenge in litigation like this is to distinguish
between systemic problems showing official deliberate
indifference and occasional lapses that are inevitable even
in well-run institutions. And while it may be helpful to
establishing a widespread custom or practice to show that
other inmates suffered similar constitutional injuries, no
such showing is required.
Bradford v. City of Chicago, 2017 WL 2080391, at *4 (N.D. Ill. May 15, 2017)
(internal quotation marks and citations omitted). The Court quoted in support from
a Seventh Circuit case, Woodward v. Correctional Medical Services of Illinois, Inc.,
368 F.3d 917 (7th Cir. 2004), which stated that “[e]vidence of a single violation of
federal rights can trigger municipal liability if the violation was a highly predicable
consequence of the municipality’s failure to act.” Id. at 929 (internal quotation
marks and citation omitted). Among the matters relied on by the Woodward court in
finding that a single incident was sufficient for a Monell claim was the plausibility
of the allegation that the incident in question suggested “a culture that permitted
and condoned violations of policies that were designed to protect inmates like [the
plaintiff].” Id. at 929 (internal quotation marks and citations omitted). While both
Bradford and Woodward involved deliberate indifference claims in the prison

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setting, the reference in Woodward to “a culture that permitted and condoned”
constitutional violations is applicable here. And although a conclusory allegation of
such a culture might not be sufficient, an allegation of such a culture that the facts
support would not be. The facts here—including allegations of the involvement of at
least three police officers who interacted with Plaintiff and/or the alleged assailant
at separate points in time and yet all acted consistently with the alleged culture, as
well as the fact that Griebel’s true identity was actually known to the IPRA
investigators within 24 hours of the incident yet Plaintiff repeatedly was told by
Callaghan that the assailant’s name was O’Dublin—is sufficient to support a
plausible claim that such a culture exists, notwithstanding that Plaintiff has not
alleged other similar incidents or complaints.
The Court acknowledges that the Seventh Circuit recently held in Gill v. City
of Milwaukee, 850 F.3d 335 (7th Cir. 2017), that “the specific actions of the
detectives” in that case alone, without more, could not sustain a Monell claim based
on the theory of a de facto policy. While the Court, of course, agrees with that
proposition insofar as the specific actions in question in that case are concerned,
Gill does not preclude an examination of the officer conduct at issue in each case to
see whether a widespread practice constituting a custom or usage is plausible given
that conduct. Whereas in Gill such an inference was not plausible, Judge Tharp in
Listenbee v. City of Harvey, 2013 WL 5567552, at *3 (N.D. Ill. Oct. 9, 2013), did infer
from the facts in that case alone that the incident at issue “was not purely a
‘random event’ but rather the product of the City’s adoption of a de facto policy of

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tolerating the use of excessive force.” Specifically, Judge Tharp relied on the factual
allegations in that case of
a brutal, unprovoked attack that began just outside the
police headquarters, suggesting that [the defendant
officer] made no attempt to avoid detection and had no
expectation of negative reaction by superiors or other
police officers. Likewise, the severity and readily
observable placement of [the plaintiff’s] injuries—
particularly the profuse bleeding from his head—permit
an inference, at this stage, that [the defendant officer]
had nothing to fear by severely injuring an individual who
was not even an arrestee at the time of the attack.
Id.
Although this is a close case, the Court concludes that it is closer on the facts
to Listenbee than it is to Gill. Moreover, the Court takes judicial notice that there
have been other complaints regarding a widespread practice in the Chicago Police
Department of protecting fellow officers from charges of police misconduct or
wrongdoing by police officers, even though Plaintiff has not specifically alleged any.
For instance, in Obrycka v. City of Chicago, 2012 WL 601810 (N.D. Ill. Feb. 23,
2012), Judge St. Eve denied summary judgment on a Monell claim where the
plaintiff had presented evidence that the City “has a well-settled, widespread
practice

or

custom

of

impeding

and

interfering

with

police

misconduct

investigations,” and that “there is an attendant ‘code of silence’ that exists within
the Chicago Police Department whereby officers conceal each other’s misconduct in
contravention of their sworn duties.” Id. at *6. In allegations similar to those made
here, the plaintiff in Obrycka maintained that “this de facto policy and the code of
silence are evidenced and caused by the Chicago Police Department’s failure to:
(1) sufficiently investigate allegations of police misconduct; (2) accept citizen
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complaints against police officers; (3) promptly interview suspected officers or take
witness statements and preserve evidence; (4) properly and sufficiently discipline
officers; and (5) maintain accurate and complete records of complaints and
investigations of misconduct.” Id. After a jury returned a verdict in favor of the
plaintiff on her Monell claim, the parties settled the case and the City moved to the
vacate the judgment. Noting that the City sought to vacate the judgment out of
“what appear[ed] to be its fear of future Monell litigation,” Judge St. Eve
nonetheless declined, holding that it was not in the public’s interest to do so.
Obrycka v. City of Chicago, 913 F. Supp. 2d 598, 606 (N.D. Ill. 2012).
The Court does not need to decide whether the allegations and findings of a
jury in a case like Obrycka, which took place several years ago, are sufficient to lend
plausibility to Monell allegations of a police “code of silence” and cover-up relating
to fellow officers’ misconduct occurring, as in this case, several years later. Less
than two months ago, several Chicago police officers were indicted on a conspiracy
to cover-up misconduct by another Chicago police officer in the Laquan McDonald
case. 3 Thus, similar complaints continue to be made against the City. See also
LaPorta v. City of Chicago, 102 F. Supp. 3d 1014, 1021 (N.D. Ill. 2015) (Monell claim
upheld based on single incident where the plaintiff alleged “practices including: (1)
concealing officer misconduct, (2) applying lenient standards to complaints against
off-duty officers, (3) failing to maintain accurate records of officer misconduct, (4)
hiring and retaining unqualified officers, and (5) permitting a ‘code of silence’ within
See “Three Chicago cops indicted in alleged cover-up of Laquan McDonald shooting
details,” CHICAGO TRIBUNE, June 28, 2017.

3

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the CPD.”). In short, even though Plaintiff has failed to allege similar incidents or
complaints of a police cover-up of fellow officer misconduct, the Court cannot bury
its head in the sand to the fact that other incidents and/or complaints (and, indeed,
at least one jury finding) in fact exist. Therefore, the motion to dismiss the re-pled
Monell claim is denied.
B.

Conspiracy Claim

To state a claim for a conspiracy in violation of § 1983, a plaintiff must allege
that “(1) a state official and private individual(s) reached an understanding to
deprive the plaintiff of his constitutional rights, and (2) those individual(s) were
willful participant[s] in joint activity with the State or its agents.” Williams v.
Seniff, 342 F.3d 774, 785 (7th Cir. 2003) (internal citations and quotations omitted).
Similarly, to state a claim for civil conspiracy under Illinois law, a plaintiff must
allege “(1) an agreement to accomplish by concerted action either an unlawful
purpose or a lawful purpose by unlawful means; (2) a tortious act committed in
furtherance of that agreement; and (3) an injury caused by the defendant.” Kovac v.
Barron, 6 N.E.3d 819, 839 (Ill. App. 2014). An agreement may be inferred from
circumstantial evidence showing “that a meeting of the minds had occurred.”
Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir. 1999).
Plaintiff has alleged an agreement between the City, the IPRA, and
individual officer defendants to cover-up Griebel’s assault, and a specific act by the
City in furtherance of that agreement. But the specific act attributed to the City in
support of Plaintiff’s conspiracy claim is that the City “continuously refused to turn

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over requested discovery documents, including the IPRA report that names Griebel
as the officer who assaulted Plaintiff.” R. 136 (¶ 55). The Court cannot plausibly
infer participation in a conspiracy based on a discovery dispute in the present case.
Accordingly, the Court agrees with the City that Plaintiff’s conspiracy claim against
it in Count III of the Second Amended Complaint must be dismissed.
C.

Battery and Second Amendment Claims

The City also moves to dismiss the Battery and Second Amendment Claims
against the City. Plaintiff states that she is withdrawing those claims. R. 143 at 12.
Therefore, the City’s motion to dismiss those claims is denied as moot.
CONCLUSION
For the foregoing reasons, the City’s motion to dismiss R. 141, is granted as
to Count III and denied as to its remaining parts.
ENTERED:
___

Dated: August 8, 2017

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Honorable Thomas M. Durkin
United States District Judge